Law Day 2022

to address that in my view is a significant problem. Q. What other current cases reflect the notion of the Constitution in a changing society? A. The OSHA case about vaccines. ( National Federation of Inde- pendent Business et al v. Department of Labor, Occupational Safety and Health Administration ). At least some of the justices in that case thought that the fact that Congress had passed this law that gives OSHA the power to regulate for the general protection of workers should not be interpreted to cover this moment of the pandemic because this pandemic is pretty much unprecedented. The argument is what they call a major questions doctrine: If it’s a really big deal, something that’s a massive economic conse- quence, like a vaccine mandate, we’re going to presume that Con- gress did not delegate the decision to an agency unless they said it really explicitly. “Lawyers have an obligation as stewards of the Constitution. We take an oath to the Constitution to support it and to promote functional constitutional governance.”

Q. How has the Constitution weathered other times of great change and what have we learned from those times? A. In the post-Reconstruction Era, the Supreme Court cut back pretty sig- nificantly on congressional ability to protect recently enslaved and now-freed African Americans. There’s this period of time known as the Lochner era, which is primarily the early 20th century, very late 19th century, where the court was con- sistently striking down economic regula- tion, things like worker protections, child labor laws, minimum wage and worker safety regulations. The court struck down those kinds of laws at the federal level by saying that they exceeded congressional power and at the state level by saying that they vi- olated the due-process clause because they impeded people’s liberty of con- tract. When the New Deal came along, the story everybody tells is that the pres- sure became so great to have economic regulations in place because they were so clearly needed. And there was a lot of political pressure, including President (Franklin D.) Roosevelt’s urging that Con- gress add seats to the court so that he could get his laws upheld. They were striking down laws on a 5-4 basis, and then one justice {Owen Roberts} sort of switched sides, and they started uphold- ing these laws. So that pre-New Deal era I would say was pretty problematic. Q. What are some other exam- ples of the Constitution in other transformative times? A. Allowing for race consciousness is something that the Supreme Court has been extremely unwilling to do except in very specific situations. Brown v. Board of

Education was an enormous step forward for the Constitution. But then in subsequent years, the Supreme Court made it very difficult both for courts and for local communities to address segregation. But increasingly the Supreme Court has prohibited race con- sciousness on the part of government entities, and often private entities when they’re pursuant to statute. The Supreme Court has taken a case about affirmative action for next term, and it seems quite plausible that they’re going to elimi- nate the last amount of legally permissible race consciousness in at least college admissions. ( Students for Fair Admissions v President and Fellows of Harvard and Students for Fair Admissions v. Univer- sity of North Carolina ). I think personally that’s not a good reading of the Constitution. There’s a lot of work we still have to do as a country in terms of race, and eliminating the government’s ability

There’s a lot I could say about why that’s wrong. That’s not nec- essarily intrinsically a Constitutional question. It’s sort of a question of statutory interpretation. But it is sort of predicated in part on a Constitutional argument. It’s called the non-delegation doctrine, which prohibits Congress from delegating too much discretion or legislative authority to agencies. Non-delegation doctrine has not been relied on to strike down a law since before the New Deal. There are now probably five justices of the court who would like to revive it.

CHICAGO DAILY LAW BULLETIN • LAW DAY 2022 33

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